Conditions of Sale PDF

Chapter 2
Conditions of Sale
A sale contract must satisfy four sets of conditions: (i) conditions of conclusion, (ii) conditions of validity, (iii) conditions of execution, and (iv) bindingness conditions.1 The reasoning behind all those conditions is the avoidance of disagreement and protection of the rights of parties to the contract. Those conditions also help ameliorate or remove all uncertainty that can lead to excessive risk. If the conditions of conclusion are not satised, then the contract is null. If the conditions of validity are not satised, then the contract is invalid. If the conditions of executablitity are not satised, then the contract is suspended and ownership is transferred only if the appropriate permission is given. If the bindingness conditions are not satised, then the parties to the contract have the option to conclude or nullify it.
2.1
Conditions of conclusion
The H s have imposed four sets of conditions for the conclusion of a contract. . anaf They are conditions regarding: (1) the contractor, (2) the contract itself, (3) the place of the contract, and (4) the object of the contract.2 1. The contractor must satisfy the following two conditions: (a) The contractors must be sane and able to run his own aairs, so no contract may be concluded by an insane person or a child who cannot run his aairs. The H s, however, do not make it a condition that . anaf the contractors reach legal age, for even a seven year old child who can understand and manage his aairs may conclude a contract. A childs ability to conclude a contract is studied by jurists through the following exhaustive partition:
n ((H ), vol.4, p.5 and thereafter). more details, see Ibn c Abid . anaf n also Al-K as an ((H ), vol.5, p.135 and thereafter; vol.2 p.332) and Ibn c Abid . anaf ((H ), vol.2 p.448). . anaf
1 For 2 See
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CHAPTER 2. CONDITIONS OF SALE i. Purely benecial dealings (e.g. accepting a gift or charity, or payment of debts by proxy). This type of dealing is valid for any sane child without requiring a permission from his guardian. ii. Sheerly harmful dealings (e.g. divorce, the giving of gifts, the giving of charity, extending loans, or risking the childs money or life by making him a guarantor for other peoples debts or life). Such dealings may not be concluded by a sane child under the legal age, even if his guardian approves them, because the guardian himself is not allowed to conclude such purely harmful dealings. iii. Dealings that may result in benet or harm (e.g. trading, renting properties, marriage, investment, etc.). Those dealings may only be concluded by a discerning child if he can understand them, and either: (a) his guardian approves them while he is still young, or (b) he approves them after reaching legal age. (b) The multiplicity of contractors: A sale may not be concluded by one legal proxy for both parties; except for a father, a legal guardian, a judge, or a messenger from both parties; or for a marriage contract. The dierence between a sales contract and a marriage contract in this regard is that a sale induces opposing rights, as related to the delivery and receipt of goods, the request to deliver the goods and receive the price, returning the goods in case of discovery of defect, or the request to exercise a valid option. In this regard, it is impossible for one individual at one point in time to be both a deliverer and a recipient, or to make a request and respond to it. Consequently, since the rights allocated by a contract are valid only for the parties to the contract, one individual party to the contract may not assume both sides. The agent (wak l) for two sides in a marriage contract is a special case, since the rights allocated by the contract are not for him, but rather for the principal, and thus he is viewed as a messenger for both sides. In sales, the father is an exception since it is assumed that he shares the best interest of his child, and therefore will not go beyond reasonable prot in exchanging his property for his childs. For Ab u H fa and Ab u Y usuf, a plenipotentiary commissioned by the father . an is in the same position as the father, and thus may conduct similar trades. However, Muh as) inval. ammad determined that analogy (qiy idates such transactions for both the father and the plenipotentiary, but that the fathers care for his child is grounds for an exception that does not apply to the plenipotentiary. The judge is considered a messenger for both sides, and therefore may conclude a sale between the two parties as a single contractor. This is possible since the judge does not himself get any of the benets or obligations stipulated by the contract, and thus may like a messenger conclude the contract by himself.
2.1. CONDITIONS OF CONCLUSION
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The majority of H scholars, in contrast to the Shac s and Zufar, . anaf nd it legitimate for one person to conduct both sides of a marriage contract, with an oer that legally constitutes an acceptance. This may be accomplished in ve ways: (i) if he is a guardian or legal agent for both sides as in saying: I married my son to my niece, or I marry this man whom I represent legally to this woman whom I represent legally; (ii) the person may represent himself on one side and be a legal agent on the other (e.g. if a woman commissions her potential husband as her legal agent in the marriage contract); (iii) the person may represent himself on one side, and be a legal guardian to the other (e.g. in marrying a young cousin); (iv) the person may be a legal guardian on one side, and a legal agent for the other, as in saying: I married my daughter to this person whom I legally represent. However, (v) representing oneself on both sides is logically impossible in this context.3 2. Conditions for the contract itself: The only condition in the contract itself is that the oer and acceptance correspond to one another, as detailed below.4 3. Conditions for the place of the contract: There is only one condition here as well, which is that the oer and acceptance are both made during the same session, as detailed below. 4. Conditions for the object of the contract: There are four such conditions:5 (a) The object of the sale must exist. Therefore, it is not permitted to sell a non-existent object, or an object that may cease to exist. Examples of the former include selling the ospring of the ospring of an animal, or selling the fruits of a tree before they appear. Examples of the latter include the sale of an unborn animal in its mothers womb, or sale of the milk in a cows udder, since both of those may cease to exist. The proof of all those conditions is that the Prophet (pbuh) forbade the sale of fruit before it is known to be of acceptable quality.6 It follows from this that the sale of what is believed to be a jewel but proves to be glass includes a faulty descripton of the nature of the object of the sale, and thus the sale would be void. The exceptions to this general rule are bayc al-salam (forward sales, with the price collected instantly), istis ac (the sale of a manufac. n tured object, with partial payments at dierent stages of production),
3 Al-K as an ((H ), vol.5, p.136), Mujmac Al-D at (p.410), Al-Far aid Al-Bahiyya . anaf . aman f Al-Qaw ac id Al-Fiqhiyya by Shaykh Mah m ud H amza (p.139). . . 4 Al-K as an ((H ), vol.5, p. 137). . anaf 5 Al-K as an ((H ), pp.138-148). . anaf 6 Narrated by the two Shaykhs on the authority of c Umar (mAbph) who said: The Mes senger of All ah (pbuh) forbade the sale of fruit before it is known to be of acceptable quality; he forbade both the seller and the buyer (Ibn Al-Ath r Al-Jazar (, vol.1, p.389)).
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CHAPTER 2. CONDITIONS OF SALE and to some H s the sale of fruits on a tree after some of the . anaf fruits are seen. (b) The object of sale must be a currently owned and temporarily nonperishable good that may be saved for future use.7 Therefore, no contract may be concluded for the sale of what may not be owned such as a free man, or forbidden foods such as wine, pork, blood, etc. Ab uH fa allowed the sale of machines whose primary purpose may . an be illegitimate, but whose parts may be used in legitimate enterprise, whereas Ab u Y usuf, Muh ams do not . ammad and the rest of the Im allow such sales since they encourage corruption. (c) The object must be privately owned by, and in the possession of, the seller. This excludes the sale of non-owned entities such as grazing grass (even in owned land), uncontained waters, wildlife, the sands of the desert and its minerals, sun light, air, etc.8 Note that the ownership of the object of the sale by the seller is not a condition for the conclusion of the contract, but a condition for its implementation, as will be seen below. (d) The object of the sale must be deliverable at the conclusion of the sale. Therefore, a sale may not be concluded if the object is impossible to deliver, even if owned by the seller. Examples of the latter are escaped animals, birds, or sh after having been in the possession of the seller.
2.1.1
Eligibility of the parties
It already has been shown that the H s require that both parties to the . anaf contract be discerning sane people.9 This is in fact a condition for the contract, not for its form. The H s consider children seven years of age and older to . anaf be discerning, while the other schools consider children over six years of age to be discerning. Sale by a discerning child The H s, M alik s, and H s agreed that a discerning child may buy and . anaf . anbal sell subject to the consent of his guardian; since the will causing the sale is indeed the guardians and not the childs, thus the sale is valid. Also, such a permission makes it possible to test the childs judgment in matters of trade before his money is given to him when he reaches legal age.10
((H ), vol.4, pp.3,150). . anaf majority of jurists do not allow the sale of uncontained waters such as the waters of seas and rivers, since they are available to all people to the exclusion of no one. However, contained water such as in a well or a spring that are owned by a particular person may be sold. The Z ahir jurists ruled that the sale of water is forbidden except if it is from a well or . a spring that is owned. 9 Al-K as an ((H ), vol.5, p.135). . anaf 10 Al-K as an ((H ), vol.5, p.135), Ibn Rushd Al-H d ((M alik ), vol.2, p.287), Ibn . anaf . af Qud amah (, vol.4, p.246).
8 The 7 Ibn c Abid n
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The Sh ac s ruled that the sale of a child is not valid if he is non-discerning, and made it a condition for both buyers and sellers to be of legal age, good religion and character, and have a good source of income.11 Their proof for this opinion is the verse: To those weak of understanding, make not over your property, which All ah has made a means of support for you[4:5]. The common factor between giving such incompetent people the monies and allowing them to trade is the potential for wasting the money illegally.12 Sales under coercion The majority of H s ruled that the contracts of trade, rent, etc. that take . anaf place under threat or coercion are defective contracts, since they eliminate mutual agreement that is a condition of contract validity. The proof is in the Qur an [4:29]. In this case, the coerced person has the right later to break the contract or to implement it. However, as in all defective contracts, the buyer does obtain ownership at the time of receipt of the price by the seller. The contract is therefore binding once the coerced seller receives the price or delivers the good of his own will. However, unlike other defective trades, the coerced sale becomes valid once the parties accept its terms either verbally or by action, thus eliminating its defectiveness. This is dierent from other defective sales in which defectiveness is not removed, since in the other cases the defectiveness is due to opposing the Law, whereas in coercion it is defectiveness only for personal reasons. Thus, they concluded that the coerced sale is a suspended defective sale (i.e. it is no longer defective if accepted). Consequently, Zufar ruled that coercion makes the contract suspended. Then, if the coercion is removed and the coerced party accepts the trade, it becomes valid. The author (Prof. Zuh ) nds this to be the better supported argument.13 . ayl The Sh ac s and the H s ruled that the contractor must be free and . anbal willing when selling his own property, so the sale of a coerced person may not be concluded, based on the verse [4:29], and based on the saying of the Prophet (pbuh): My people have been forgiven [their actions committed under] errors, forgetfulness, or coercion.14 However, coercion to enforce rights does not prevent the completion of a contract because the consent of religious Law (Sharc ) supersedes and replaces the traders consent. Examples are selling a house to enlarge a mosque, road, or cemetery when needed; or selling a good to pay back a debt or for alimony and support payments for a spouse, children or parents; or to pay taxes.
Al-Shirb n ((Sh ac ), vol.2, p.7). ruled (see Toh fat Al-Muh aj wa Ghayrih a min Shor uh aj): the trades . . t . Al-Minh of four may not be concluded: a child, discerning or not, an insane person, a slave even if given an order, or a blind person; such sales is null. 13 Ibn c Abid n ((H ), vol.4, p.4; vol.5, p.89-91). . anaf 14 Al-Tabar an related this H th on the authority of Thawb an using the phrase All ah has . . ad forgiven. Al-Nawaw said it is a good H th. It was criticized by Al-Haytham due to one . ad of the links of its narration being Yaz d ibn Rab c a Al-H , and determined that it was . alab weak. It was related by Ibn M ajah, Ibn H an, Al-D araqut , Al-T an , Al-Bayhaq , . ibb . n . abar and Al-H akim in Al-Mustadrak on the authority of Al-Awz ac . There are dierences among . tha narrations. See Ibn H am (, vol.6, p.250). . ajar (, vol.1, p. 109), and Al-Hayth
12 The Sh ac s 11 Al-Khat b
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CHAPTER 2. CONDITIONS OF SALE
The M alik s determined that the sale by a coerced person is not binding, and the coerced party then has the option to break or fulll the contract, as found in the Mukhtas ar of Khal l, and its interpreters. Ibn Juzayy ruled that . both the buyer and seller must be contracting of their free will, since the selling and buying of a coerced person is void.15 Compelled sale A compelled sale (bayc u al-mud tarr) is a sale in which a person is forced to sell .. part of his property, and the buyer pays an excessively low price. Examples include a judge forcing a person to sell his property to pay his debts, or forcing a Christian or Jew to sell a copy of the Qur an or a Muslim slave, etc. The H s have determined that the buying and selling of the coerced is defective . anaf (f asid).16 However, other jurists have permitted it if it is dictated by necessity. Sale to pre-empt danger A sale to pre-empt danger (bayc al-taljia or bayc al-am ana) is a sale in which a person pretends to sell his property to a third party to avoid being transgressed upon by an unjust person, and the sale is concluded according to all the usual rules and conditions. Jurists disagreed on this form of sale: The H s determined that it is a null contract, since the parties did not . anbal intend a real sale, and therefore its status is similar to that of parties joking about a contract.17 The H s and Sh ac s determined that it is a valid sale, since all the cor. anaf nerstones and conditions of the sale contract have been satised, and the parties have uttered the oer and acceptance with free intent. This is similar to a case in which two parties agree on a contract-spoiling condition, but then conclude the contract without such a condition. The belief of the person making the contract that he may suer otherwise does not aect the contract, as all other beliefs do not.18 Brokerage sale: Brokerage (al-samsara) is the intermediation between a buyer and a seller to conclude a sale, and it is admissible. The compensation that the broker collects is admissible, since it is compensation for work and eort. However, the Sh ac s ruled that it is not proper to pay an intermediary for simply advertis ing the product, if the advertising was costless, since there is no value added by that advertisement, even if it increases the chances of selling it at a high
15 Al-Shac ar an ((Sh ac ), vol.2, p.62), H shiyat Al-Dus uq (vol. 3, p.6), Al-Khat b Al.a . Shirb n ((Sh ac ), vol.2, p.7 and thereafter), Ibn Juzayy ((M alik ), p.246), and Marc ibn Y usuf (1st printing (H ), vol.2, p.5). . anbal 16 Ibn c Abid n ((H ), vol.4, pp. 111,255), Ibn Qud amah (, vol.4, p.214). . anaf 17 Ibn Qud amah (, vol.4, p.214). 18 Al-Khat b Al-Shirb n ((Sh ac ), vol.2, p.16). .
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price.19 There is no harm in one person saying to another: sell this item for so much, and any extra you may keep or divide between us. This is based on the H th narrated by Ah u Daw ud, and Al-H akim on the authority . ad . mad, Ab . of Ab u Hurayra: Muslims are bound [in contracts and agreements] by their conditions.
2.1.2
Correspondence of acceptance to the oer
A condition of the sale contract is that the seller accepts all that the buyer had oered to buy, and for the terms he specied.20 So, if one individual says to another: I have sold you those two items for such a price, and the buyer replies I accept in that item only, pointing to one, the sale is not concluded. Similarly, if one party says: I sold you this house with all its contents for such a price, and the buyer replies: I accept buying the house alone without its contents for such a (lower) price, the contract is not concluded. In both cases, the buyer would be dividing what the seller is oering to sell, and it is not up to him to do so; especially since sellers often combine the higher quality with the lower quality goods in bundles they attempt to sell, thus enabling the sale of the lower quality goods. Of course, if the buyer accepts the higher price, the sale is concluded since the one who agrees to pay more for the same item must agree to pay less. In this case, the buyer is only obliged to pay what the seller requested. If the buyer accepts but at a lower price, then the contract is not concluded. Similarly, if the buyer disagrees with the seller on the nature of the price and not necessarily on its quantity, the sale is not concluded. For example, if the seller oers to sell at an immediate (cash and carry) price, but the buyer accepts to buy now and pay in the future; or if the oer and acceptance dier on the timing of future payments, then the acceptance does not correspond to the oer, and the contract is not concluded.
2.1.3
Unity of the contract session
It is required that the oer and acceptance be uttered in the same session, where both parties are present, or in a session where the absent party knows of the oer.21
19 Al-Khat b Al-Shirb n ((Sh ac ), vol.2, p. 335), and in the Ih a of Al-Ghaz al : It is not . y . permissible to receive compensation for an endorsement by a physician of a medication that only he knows, since such an endorsement is eortless; unlike the skilled sword-maker who has to exert eort to straighten a sword with one hit, and he is entitled to a reward [even if it is too large]. This is the case since acquiring the necessary skill to perform the job without eort itself requires much eort. Al-Qa al declared an opinion (fatw a) that he may not be hired, which is the majority opinion, even though Al-Adhrac agrees with the view of Al-Ghaz al . 20 Al-K as an ((H ), vol.5, pp.136-7), Al-Khat b Al-Shirb n ((Sh ac ), vol.2, p.5 and . anaf . thereafter), Al-Buh ut (3rd printing (H ), vol.3, p.136), and Y usuf M us as Al-Amw al wa . anbal c Naz . ariyyat Al- Aqd (p.256). 21 Al-K as an ((H ), vol.5, p.137 onwards), Al-K as an ((H ), vol.5, p.80), and Dr. . anaf . anaf Y usuf M us as Al-Amw al (p.257).
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According to this condition, if one party made an oer, and the other party left the session before accepting, or was occupied with another business that disengaged him from the rst party, then he later accepted, the sale is not concluded. This does not mean that acceptance has to be instantaneous, for the acceptor may need to ponder the oer. The M alik s ruled that separation between the oer and acceptance does not harm the sale contract, unless (as determined by convention) one of the parties was disengaged from the transaction.22 The Sh ac s and H s ruled that cceptance must follow the oer, but not . anbal by a long period. A long period is dened as one that may indicate that the second party does not wish to accept. The contract would be harmed if a discussion outside the scope of the contract ensues between the oer and the acceptance. Contracting while walking or riding If the parties conduct a sale while walking or riding the same or adjacent vehicles, then if the oer and acceptance were uttered in sequence without interruption (even while moving), the contract is concluded. However, if there was a period of silence between the oer and acceptance, even a short one, then the contract is not concluded, since movement in this case changed the session (majlis). In analogy, the jurists extended this ruling to the recitation of a prostration (sajda) verse, or an oer to a mans wife to divorce herself if she wishes. In the former case, the person does not have to perform the prostration if he is walking or riding, and in the latter case, the option to the wife becomes void by her walking or riding since that option is restricted to the session (khiy ar al-majlis).23 If the parties conduct the sale while standing up, it is concluded. However, if one makes an oer while they are standing, then one or both start walking, the contract is not concluded since the session has been changed before acceptance. In this case, walking is considered a rejection of the oer. In a special case, if a husband stands up and gives his wife the option, then he walks away while she is still standing, then she still has the divorce option. But if she walks and he stays standing, her option is void. In this case, it is her adherence to the session that matters and not her husbands, since she has not given any indication of rejecting the oer. As for the husband, his walking away or rejection cannot nullify the option since it is binding once it is oered. This is unlike a sale, where either of them may cancel the sale by walking away. Contracting on a ship or airplane If the two parties make a contract on a ship, airplane, or train, the contract is concluded, whether the vehicle is moving or stationary. This is dierent from
22 See 23 Sheikh Mahm ud
H w c al a Al-Sharh Al-S r (vol.3, p.17). . ashiyat Al-S .a . agh c. H a id Al-qhiyya . . . amzas Al-qaw
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walking or riding on the ground, since stopping those means of transportation is under the control of the parties. Thus the entire ride on a ship, airplane or train is considered a single session, no matter how long. Contracting with an absent party If one party extends a selling or buying oer to an absent party, and the absent party receives that oer and accepts it, the sale is not concluded. The fundamental rule on which this is based is that one of the two halves of the contract is only valid for that session and not beyond, unless the absent party commissions a proxy they contract by messenger, or they conduct the contract by written correspondence.24 Contracting via a messenger An example of this transaction is to tell a messenger: I have bought suchand-such an object from the absent person so-and-so for such an amount of money, so go to him and say: so-and-so has bought this object from you for so much. Then, the messenger arrives and delivers his message. If the second party accepts the oer in the same session during which the message is delivered, then the sale is concluded. This is valid since the messenger represents the rst party, as if he were present and making the oer, so when it is accepted in the same session, the sale is concluded. Contracting by written correspondence An example of this case is when one party writes a letter stating: I have purchased such-and-such an item for such an amount of money. The second party receives the letter, and announces acceptance of the written oer during the same session in which he received it. The sale is thus concluded. In this case, the written letter becomes a proxy for the absent party, as if he were present at the session where the oer and acceptance were communicated to the two parties. However, if the recipient of the message delays acceptance until a later time (after the end of the session majlis), then the sale is not concluded. The person sending an oer letter may rescind that oer in the presence of witnesses provided that this takes place before the other partys acceptance, and the arrival of the message. However, the majority of M alik jurists nd that the originator of the oer may not rescind it before he gives the other party an opportunity to respond. The length of the period that constitutes such an opportunity is to be determined by convention. Note that unity of the session (majlis) is also a condition for the conclusion of a lease contract or a gift.
24 Al-K as an
((H ), vol.5, p.137 onwards), and Ibn Al-Hum am ((H ), vol.5, p.79). . anaf . anaf
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Divorce and khulc As for divorce, the part of the contract originating from the husband continues to be valid, and may be accepted by the other party after the session is over. For instance, if a man says: I have divorced my absent wife, on the following terms, and she receives the news and accepts the terms, then the divorce is concluded. Marriage For Ab u H fa and Muh . an . ammad, marriage is treated the same way in this context as sales, so one side of the contract may not be suspended beyond the session, unless the absent party is represented by a consenting proxy who accepts the oer. For example, if a man or woman says in the presence of witnesses: witness that I have married so-and-so for such-and-such terms, and the other party receives the news and accepts, the contract is not concluded for Ab u H fa and Muh . an . ammad unless the absent party is represented by a proxy who accepts on behalf of the absentee in the session of the oer. For Ab u Y usuf, however, half of the marriage contract is suspended beyond the session and may be validly accepted by the second party, even if not represented by a proxy who accepts in the session of the oer. The principles of unity of a . safqa, and its parting The term . safqa in Arabic (literally: the impact of a strong handshake) is used said that . safqa is a name for sales to signify the contract itself.25 Al-Nawaw contract since it was customary for each of the contractors to slap his hand loudly with his counterparts hand at the conclusion of the contract.26 As discussed above, the sale contract is composed of an object of sale, a price, a seller, and a buyer, together with a sale and a purchase. With the combination of some of those items or their parting, the contract may be unied or dissolved.27 jurists agreed on the necessity of combining all the elements of a contract as a matter of principle, since one condition for the conclusion of sale is the one we mentioned above: that the acceptance corresponds to the oer. However, there are some partial disagreements about the satisfaction of this principle or lack thereof; the latter corresponding to the dissolution of the contract. In this regard, the H s argued28 that it is necessary to understand the . anaf unication of the contract, or its partition; both with respect to the parties of the contract, and the object of sale. 1. With respect to the parties of the contract: If the side making the oer is unitary whether a seller or a buyer and the recipients of the oer
Al-Hum am ((H ), vol.5, p.80). . anaf Al-Nawaw /Al-Subk ((Sh ac ), vol.9, p.524). c Al- In aya, and Al-Im am Al-Nawaw /Al-Subk ((Sh ac ), vol.9, p.432 onwards). 28 Ibn Al-Hum am ((H anaf ), vol.5, p.80), Al-K a s a n ((H anaf ), vol.5, p.136 onwards), Ibn . . c Abid n ((H ), vol.4, p.20). . anaf
26 Al-Im am 27 See 25 Ibn
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were more than one, then the recipients may not partition the contract by some of them accepting and some rejecting the oer. Similarly, if the oer is made by a group, the recipient of the oer may not accept the part of the oer pertaining to one of the oerers. In those cases, the contract is not concluded unless all the recipients accept the entire oer. If, for example, a buyer makes an oer to a number of sellers, and some accept while others do not, then the contract is partitioned, and the sale can only be concluded with a new acceptance. 2. With respect to the object of sale: Even if the parties making the oer and accepting it are unitary, the acceptor of the oer may not accept part of the contract pertaining to a portion of the merchandise. If the parties are both unitary, but the objects of the sale are fungible (mithl ), or some fungible and some non-fungible (q m ),29 then the buyer may not accept to purchase some of the merchandise but not all. In this case as well, the contract would have been partitioned, and the sale can only be concluded with a new acceptance from the primary party. In this case, the new acceptance may conclude the sale contract by making the partial acceptance an oer, and the secondary acceptance an acceptance (while the initial oer is no longer valid since it is implicitly rejected). Note that there is a dierence between those two cases with respect to the manner in which the price would be distributed, as well as the unity of the contract or its partition. For, if the objects of the sale were fungible (e.g. two bags of rice, or two pounds of iron), and the buyer accepts one of them, then the price is divided in proportion; since the price of fungible items is divided in proportion to its parts. In this case, the contract is unied. However, if the merchandise were non-fungible, e.g. two unique pieces of cloth or two particular animals, then the price may not be divided in proportion to the number of parts, since the parts are not identical. In this case, the partial acceptance leaves the parts of the oer with undetermined prices, and indetermination of the prices nullies the sale. To correct this situation, one of two procedures may be followed: (a) Either the oer is repeated; e.g. by saying: I sell you those two items, this one for so-much, and that one for so-much (or similarly for the buyer if he originates the oer), then the contract is valid, and it in fact becomes two contracts. (b) Alternatively, the oer may partition the sale at the inception of the oer (e.g. I will sell you those two items, this one for so-much, and that one for so-much). In this case, the acceptor is not partitioning the contract, but it is indeed already partitioned, and he may accept
29 fungible: being of such nature that one part of quantity may be replaced by another equal part or quantity of an obligation (oil, wheat and lumber are fungible commodities), Merriam-Webster Collegiate Dictionary, 10th edition, 1993, p. 473. [tr.]
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CHAPTER 2. CONDITIONS OF SALE whichever part(s) he wishes, and reject the others. Had the seller intended to sell the two items only in one transaction, there would be no use in specifying the price of each separately.
If the oer and acceptance correspond to one another (i.e. agree on the object, the price, etc.), then the sale is binding, and neither party has an option, unless a defect is found in the merchandise, or if it were not inspected before. In item #351 of Al-Majalla, the following was stated: If some merchandise was sold in a single contract, and then some of it was found defective then: if the price has not been received, the buyer has the option to return the entire merchandise, or to keep it all for the full price. However, the buyer does not have the option to return the defective parts only and keep the rest. If the price has already been collected, and if separating the merchandise does not lead to loss or harm, he may return the defective parts in exchange for its portion of the price were it not defective. In this case, he may not return the entire merchandise unless the seller agrees. And if the separation of the merchandise may lead to loss or harm, then either the entire merchandise is returned, or it is all accepted at the full price ... Ab uH fa and the M alik s ruled30 that if the sold merchandise contains . an a mixture of admissible and prohibited goods (such as wine, pork, etc.), then the entire sale is void. Ab u Y usuf and Muh . ammad ruled that the contract is valid for the good merchandise, and defective for the defective. The origin of disagreement between Ab u H fa and his two colleagues is that for Ab u . an H fa, the defectiveness of part of the sale agreement renders the entire agree. an ment defective, whereas his two colleagues consider the good part of the sale still valid. If a person sells items he owns together with items owned by another in one sale agreement, the sale is valid, and binding only for the part that the seller owns. The sale is not binding for the part owned by another unless the other person allows it. The H s and M alik s agree on this since they allow for the . anaf suspended (mawq uf) or uncommissioned agent (fud l ) sale, as discussed below. .u 31 s and H anbal s studied the partition of a conThe majority of the Sh ac . tract in the case of sales of legitimate and prohibited goods in one contract for one price in three cases: 1. The sale of a known and an unknown item for one price (e.g. I sell you this book and another that I own for such a price). In this case, the sale is void, since the unknown may not be sold, and the price of the known is unknowable. 2. The sale of divisible goods that are jointly owned by one of the owners without the permission of the others. In this case, the sale is valid for the
Juzayy ((M alik ), p.260), and Al-K as an ((H ), vol.5, p.217). . anaf Al-Nawaw /Al-Subk ((Sh ac ), vol.9, pp.425-437), Ab u-Ish aq Al-Sh r az . c ((Sh ac ), vol.1, p. 269), Ibn Qud amah (, vol.4, p.236 onwards), Ibn Rajabs Al-Qaw a id (p.421), Al-Suy ut ((Sh ac ), p.98), Marc ibn Y usuf (1st printing (H ), vol.2, p.16). . . anbal
31 Al-Im am 30 Ibn
25
portion owned by the seller at its portion of the price. The sale is void for that which is not owned by the seller. 3. The sale of goods that are non-fungible, or whose price is not divisible in proportion due to the uniqueness of the components (i.e. q miyy at), while some of the goods are permissible and others are forbidden (e.g. a lamb and a pig, or a bottle of wine and a bottle of vinegar for one stated , and in a price). In this case, the better of two opinions for Al-Sh ac related opinion of Ibn H . anbal, renders the sale valid in the permissible goods and void for the forbidden.32 As for the division of the price, items are priced the same as their closest counterpart (e.g. commissioning the pig the same price as the lamb, or the wine the same price as the vinegar). This is what was stated by those who related this rst opinion of Ah . mad. However, the H jurist Ibn Qud ama found the second related opinion . anbal of Ah . mad that the entire sale is void. If the sale consisted of the property of the seller and the property of others, the price may not be divided in proportion. The favored opinion among s is that the sale of that which is owned by the seller becomes the Sh ac valid, while the sale of the other items becomes void; but the price is divided based on the value of the items. As for the H s, the entire . anbal sale is void in this case. s ruled As for the option of partitioning the sale, the H s and Sh ac . anbal that if part of the sale is valid, then if the buyer knows the situation (e.g. that the merchandise and its price are divisible), he has no option, since he bought while knowing the conditions of the merchandise. On the other hand, if the buyer did not know, e.g. by thinking that all the merchandise was owned by the seller only to discover that he owns only half, then he has the option to break the contract or uphold it. The seller in this case if the buyer decides to keep the valid part of the sale does not have the option in the more favored opinion, since he willingly accepted exchanging his part of the merchandise for the appropriate portion of the price. If part of the merchandise sold in one contract is spoiled before the buyer receives it and before the seller receives the price, then the contract is unanimously seen as void for the spoiled part. As for the rest of the merchandise, the buyer has the option to keep the unspoiled merchandise at the agreed price, or to void the entire contract. The Z ahir s ruled that every sale agreement that combines a legitimate por. tion and a prohibited one is void in its entirety. a) deem the mixed sale In summary: the majority of jurists (jumh ur al-c ulam that contains permissible and prohibited components, or owned and unowned merchandise, to be void. The Sh ac s, on the other hand, lexically Al-Nawaw
32 This explains the common statement of the Sh ac s about the two statements on the partition of a sale agreement. The rst and stronger statement for the Sh ac s is that the agreement is partitioned, permitting the sale of the permissible, and voiding the other, and their second opinion is that the sale may not be partitioned, and thus it all becomes void.
26
who favored this opinion ruled that the contract is valid for the permissible part, and void for the impermissible part.
2.2
Conditions for the executability of a sale
There are two conditions for the executability of a sale: 1. Ownership or guardianship (wil aya): Ownership is the possession of an item where the possessor is alone capable of freely using it in the absence of legal constraints. In this regard, the guardian of an underage child or an insane person, is not considered an owner of that persons property. However, the underage child or the insane person are considered the owners, even though they may not freely use the objects due to the legal constraint of being under another persons guardianship.33 Guardianship: There are two types of guardianship. (a) Original: A person is fundamentally a guardian for himself. (b) Agent/vicarious: For those who may not legally represent themselves (e.g. due to being underage), a guardian may be commissioned. The legal order of legal agents is as follows: the father, then his plenipotentiary, then the grandfather, then his plenipotentiary, then the judge, then his plenipotentiary.34 The result of this condition is that the merchandise must be owned by the seller, so the uncommissioned agent (fud l ) sale is not executable .u due to lack of ownership or legal agency. However, the H s ruled . anaf that the fud l sale is suspended pending the agreement of the owner. .u , on the other hand, considered ownership or legal agency a conAl-Sh ac dition of conclusion, thus voiding the transactions of an uncommissioned agent (fud l ).35 .u 2. No third party should have rights over the object of sale: If anyone other than the owner has a legal right to ownership of the merchandise or its usufruct, then the contract is suspended. Hence, the seller cannot sell what he has pawned or rented. The sale is thus considered suspended and dependent for executability on the consent of the other parties. This is the best accepted opinion among the H s, since the cornerstone of . anaf the sale was satised, and since there is no coercion to any party of the contract.36 The buyer in this case has the option to conclude the sale or to void it. As for the other party who has a vested interest in the sale object (e.g. a tenant or pawn-broker), if they allow it, the contract will be executable. If the renter of a property does not allow the sale, then it
c wa Naz . ariyyat Al- Aqd (p.165). n ((H ), vol.4, p.6), Al-K as an ((H ), vol.5, pp.146,155). (p.148), Ibn c Abid . anaf . anaf 35 Al-K as an ((H ), vol.5, p.148). . anaf 36 Al-K n ((H ), vol.4, pp.6,145-148). as an ((H ), vol.5, p.155), Ibn c Abid . anaf . anaf 34 ibid. 33 Al-Amw al
2.2. CONDITIONS FOR THE EXECUTABILITY OF A SALE
27
may only be executable after the end of the rent contract. Similarly, the pawner may have to repay the pawn-broker before the sale is executable. n is the correct opinion. This according to Ibn c Abid Based on this opinion, the sale of a middle man becomes admissible but suspended dependent on the consent of the owner. In this case the contract may be broken by the buyer, but the dependence on the consent of the owner is not viewed as a breaking of the contract. Also, the middle-man may break the contract, except in the case of marriage. Professor Mus a Al-Zarq a said: The best juristic opinion is that a sale .t . af may not be suspended pending the consent of a pawn-broker or a renter, even though they do have some legal rights regarding the object of sale, since such suspension is only valid legally for an owner or a legal agent. On the contrary, he says, the sale is executable, but the delivery of the good requires the consent of the pawn-broker or the renter to guarantee their rights. In this case, the buyer is given the option of voiding the contract, or waiting for the pawned good to be freed, or the rent contract to expire, before receiving the purchased items.37 Executable and suspended sales Given the H conditions for executability38 of a sale listed above, it can be . anaf seen that there are two types of sales: executable and suspended. Executable sale: This is the type of sale in which the cornerstones of the contract, its conditions of conclusion, and its conditions of executability are all satised. Suspended sale: This is the type of sale in which the cornerstones and conditions of conclusion of the contract are satised, but the conditions of executability (ownership and guardianship) were not. As seen above, the conditions of executability may be violated in the object of sale (as in the sale by an uncommissioned agent) or in the behavior of parties to the contract (as in the sale or purchase by a young discerning child, or an incompetent person). Jurists views on uncommissioned agent An uncommissioned agent (fud l ) is someone who makes a transaction or signs a .u contract without having the legal authority or representation to do so. Examples are when someone sells or buys for another, or rents on behalf of another, without being a legal proxy, agent, guardian, or plenipotentiary with the right to make such a contract, and without taking permission.39 One person selling
Al-Bayc (p.31), Ibn c Abid n ((H ), vol.5, p.371). . anaf we use conclusion for inc iq ad (the contract is concluded= tamma al-c aqd or c in aqad), and executability for naf adh. [tr.] 39 Ibn Rushd Al-Haf c d ((M alik ), vol.2, p.171), Al-Amw al wa Naz . . ariyyat Al- Aqd (p.380), c c a by Prof. c Abd Al-Sam Us u l Al-Buy u Al-Mamn u c (p.134). .
37 c Aqd 38 Here
28
the property of another has become very common in everyday dealings; e.g. men selling the property of their wives, or individuals selling the property of the state, or the property of person missing for a long time. Notice that the uncommissioned agent is dealing in property that is clearly owned by another, otherwise (if the other party thinks that the property is his), it would be considered selling what he does not own, which is prohibited. What is being considered here is the uncommissioned agents sale of the property of another, with the condition that the owner has the option to make the sale executable, or to void it. Similarly, the uncommissioned agent may buy an item for a third party without their permission, with the condition that the ultimate buyer has the option to accept or void the purchase.40 Jurists dier in opinion regarding the dealings of uncommissioned agents: The H s distinguished between the cases of sale and purchase. In the case . anaf of a sale, the dealings of the uncommissioned agent are deemed valid but suspended, whether the uncommissioned agent or the owner is listed as the seller in the contract. It is suspended since if he signs as the seller, he cannot execute the contract. In the case of purchase, if the uncommissioned agent lists himself in the contract as a buyer, with the intention of buying for another person, he is considered the buyer if his own trading is executable. In this case, the rule appeals to the principle that a persons dealings are normally for himself and not for another. If the buyer listed in the contract is other than the uncommissioned agent, or if his purchase is not executable (due to being a child, or one with legal restrictions on his dealings) then the purchase is valid but suspended conditional on the approval of another person or the person for whom the purchase was intended. If the intended buyer approves the transaction, it is executable, and the uncommissioned agent is considered ex post authorized. In summary: the dealings of an uncommissioned agent is deemed by the H s to be admissible but suspended pending the approval of the rel. anaf evant party.41 In this context, the trades of the uncommissioned agent, together with the sale of surrendered property, the sale of coerced person, and the sale of a legal proxy, are among the special cases of the sale of what one does not own. The M alik s consider the dealings of the uncommissioned agent and his trade contracts in general to be concluded and suspended pending the permission of the aected party. If the aected party approves of the contract, it becomes valid and executable, otherwise it is void. This is based on
Rushd Al-H d ((M alik ), vol.2, p.171). . af vol.5, pp.148-150), Ibn Al-Hum am ((H ), vol.5, p.309 onwards), . . anaf n ((H ), vol.4, pp.5-6). Ibn c Abid . anaf 41 Al-K as an ((Hanaf ),
40 Ibn
29
the view that ex post permission is similar to ex ante permission or legal representation.42 The H s and M alik s have cited as proof of their opinion the verses . anaf of trade that are general, and did not oer any special treatment of the case of uncommissioned agents. In this regard, they cite the verses: But All ah has permitted trade [2:275], But let there be among you trac and trade by mutual good will [4:29], and And when the prayer is nished, then you may disperse through the land, and seek of the bounty of All ah [62:10], all of which mention trade positively in general terms. Also, the uncommissioned agent is (generally assumed to be) of legal age and of good mental status, thus allowing his transactions is more appropriate than nullifying them. Moreover, the contracts may indeed bring benet to the party he represented, and there is no harm since the person he represented without authorization has the option to void the contract if it is not benecial. It is narrated in Al-Bukh ar and elsewhere that the ariq one d n ar with which to buy one Messenger (pbuh) gave c Urwa Al-B lamb, but he bought him two lambs for the one d n ar. He then proceeded to sell one of the lambs for one d n ar, and returned to the Messenger (pbuh) with one lamb and one d n ar. The Messenger (pbuh) said: May All ah bless your trades. It was narrated by Al-Tirmidh and Ab u D aw ud on the authority of H ak m ibn H iz a m that the Prophet (pbuh) gave him . . one d n ar to buy him a lamb for sacrice. He then proceeded to buy two lambs for the one d n ar, and sold one of them for one d n ar, and returned to the Messenger (pbuh) with one lamb and one d n ar. The Prophet (pbuh) commended him and prayed for him to be blessed by saying: May All ah bless your trade.43 Note that the Prophet (pbuh) in both versions of the story did not order the second lamb to be either bought or sold. The H s ruled44 that the dealings of the uncommissioned agent are never . anbal valid in trade or otherwise, even if his dealings are approved ex post. The exception is when the uncommissioned agent purchases for himself with the intention of purchasing for another person who is not mentioned in the contract, in which case the contract is valid. Similarly, if he bought some goods on a cash-and-carry basis and had the intention that he was buying for another person who was not mentioned, then the sale is valid. In these cases, if the unmentioned party intended for the purchase approves it, the merchandise becomes his from the moment of purchase; but if he does not approve it, then the middle person becomes the buyer. Ibn Rajab ruled that dealings of the uncommissioned agent are permissible and suspended pending permission if necessity dictates dealing in the property and rights
42 Ibn Rushd Al-Haf alik )), H shiyat Al-Dus uq (vol.3, p.12), Ibn Juzayy ((M alik ), . d ((M .a p.245). 43 Al-Sanc an (2nd printing, vol.3, p.31). . 44 Al-Buh ut (3rd printing (H ), vol.2, p.11 onwards), Ibn Rajab (1st edition (H ), . anbal . anbal p.417),Marc ibn Y usuf (1st printing (H ), vol.2, p.8), Mat lib Uwl Al-Nuh a f Sharh . anbal .a . Gha yat Al-Muntah a (vol.3, p.18).
30
CHAPTER 2. CONDITIONS OF SALE of another person, and obtaining permission was impossible due to not knowing his identity, his absence, or the diculty of waiting for him. Item (13) of the project to legalize the Shar c a following the school of Im am Ah . mad states: The dealings of an uncommissioned agent are invalid, even if approved ex post, unless he buys for himself with the intention of buying for a person whom he does not name, then it is valid.
The Sh ac s and the Z ahir s ruled that it is necessary for the item being sold . to be owned by the one engaged in the contract. Hence, the sale by an uncommissioned agent is invalid at its origin since it cannot even be concluded, thus making the permission of the aected party irrelevant. Their proof for this opinion the H th h asan narrated by Ab u D aw ud . ad . and Al-Tirmidh that the Prophet (pbuh) said: There is no sale except in what you own. The prohibition of selling what one does not own has also been correctly reported.45 This is due to the uncertainty induced by the possible inability to deliver to the sold items at the end of the contract, and the conicts that may ensue. They said with regards to the ariq or H m ibn H am that it is valid due to his H th of c Urwa Al-B . ak . iz . ad being an unrestricted legal agent of the Prophet (pbuh), since he bought the lamb and delivered it.46 Thus, it is a legal representation where the agent diverged to improve the lot of the person whom he represented, and therefore his dealings are executable. Thus, the Sh ac s and Z ahir s view . the purchase of an uncommissioned agent as a purchase for himself, and ruled that ownership does not transfer to a third party except via a new contract. This is also the opinion of the H s. . anaf Validity of the dealings of an uncommissioned agent The H s stipulated the following three conditions for the validity of a con. anaf tract by an uncommissioned agent:47 1. A person who can validate the deal must exist at the time of the contract, since it is then possible for this person to give permission to conclude the contract following the actions of the middle person in the same session. However, if the person who can give such a permission is not known to exist, then permission may not be given during that session, and a future permission may or may not be forthcoming. Thus, if an uncommissioned agent divorces the wife of a man of legal age, or gave his property as a gift or charity, his actions conclude the contract but it is suspended pending
45 The text of the Had was narrated by Ah ab Al-Sunan Al-Arbac a on the . th . mad and As .h . authority of H ak m ibn H iz a m, that the Prophet (pbuh) said to him: Do not sell what you . . c (1st do not have, which was deemed H th h asan by Al-Tirmidh , c.f. Al-H az . ad . . . Al-Zayla edition, (H th), vol.4, p.45), Al-Shawk an (, vol.5, p.155). . ad 46 Al-Khat b Al-Shirb n ((Sh ac ), vol.2, p.15), Al-Im am Al-Nawaw /Al-Subk ((Sh ac ), . vol.9, pp.281,284 thereon). 47 Al-K as an ((H ), vol.5, pp.149-151), Ibn Al-Hum am ((H ), vol.5, p.311), Ibn . anaf . anaf c Abid n ((H ), vol.4, p.142). . anaf
31
permission. In this case, the concerned party could have initiated these contracts by himself, thus he may approve them after they occur. In this sense, a person who can validate the deal does exist at the time of the contract. However, if the uncommissioned agent attempts to do the same on behalf of a child, then the contract is not concluded, since the child does not have the ability to conclude such contracts on his own, and the childs guardian does not have the ability to conclude them on his behalf. In this case, a person who can validate the contract does not exist at the time of the contract. 2. Validation (giving of permission) must take place while the buyer, seller, owner, and merchandise all exist. Thus, if a contract is approved after one of those had perished, the contract is void and approval of it does not matter. This is the case since such approval is with respect to a contract, whose cornerstones (the parties to the contract, and its object) must exist at the time. 3. That the uncommissioned agent does not have the ability to execute the contract if the concerned party refuses. Nullication of uncommissioned agent contracts The contract (e.g. a sale) by an uncommissioned agent may be nullied by: (i) the owner of the property, (ii) the middle person himself before the sale is approved by the owner to avoid the obligations he would have if the owner approves it, or (iii) the buyer who may decide to avoid possible harm in buying from a party other than the owner. As for the marriage contract, the uncommissioned agent may not nullify it since it is a contract whose rights and obligations are all allocated to the concerned parties.48 Validation of the contract of an uncommissioned agent may only come from the owner or others who have rights associated with the item of sale. Moreover, validation may only take place if the buyer, seller, and object of sale are all unchanged (since validation of this contract is legally equivalent to concluding a direct sale). Also, if the object of the sale is unique, its price must remain unchanged. The object of the sale must remain unchanged. This follows since it is in the interim owned by the middle person, and thus if it perishes, it perishes in his property.49 One uncommissioned agent for two parties If an uncommissioned agent sells someones house to another person and accepts for the buyer, while both are absent, or if he marries a man to a woman and accepts for both sides, the contract is not concluded. This ruling follows from the condition of multiplicity of the parties to the contract, as explained above. Thus,
48 Al-K as an 49 Ibn c Abid n
((H ), vol.5, p.151), Ibn Al-Hum am ((H ), pp.309-312). . anaf . anaf ((H ), vol.4, p.146 thereon). . anaf
32
the oer in contracts of sale, marriage, etc. may not be suspended conditional on the acceptance of an absent party. On the contrary, the oer becomes void, and later permission may not conclude the agreement. Therefore, if one person is an uncommissioned agent for both sides of a marriage contract, or if he is an uncommissioned agent for one side while representing the other party (that party being himself, someone he legally represents, or for whom he is a guardian), then his oer is not suspended. Such an oer is considered by Ab u H fa and Muh . an . ammad to be void, whether he spoke only for one side (by only making the oer), or for both sides (by making an oer and an acceptance). Ab u Y usuf ruled that the oer of an uncommissioned agent is suspended pending acceptance by the absent party, and it is suspended pending acceptance by both parties if it is accepted by another uncommissioned agent. For example, if two uncommissioned agents marry a man to a woman without their knowledge, it would be valid but suspended conditional on their acceptance. Then, if they accept, the contract is executable, otherwise it is not. The two parties argued thus: The acceptance by an uncommissioned agent is legally unacceptable, since the oer extended by the uncommissioned agent without a potential acceptor in the session (not even another uncommissioned agent) was invalid from its inception. Thus, it is not suspended pending acceptance of an absent party, and later acceptance does not change its invalidity. In other words, all that exists at the time of the oer is half of a contract, and the other half may not be realized without legal representation through guardianship. The argument of Ab uY usuf, on the other hand, is that the expression of the uncommissioned agent contains both halves of the contract, and hence it is valid as it would be in the presence of a legal agent or guardian.50
Suspension of transactions by a discerning child If the child is mindful and discerning, then the H s and H s ruled that . anaf . anbal his transactions are valid, but suspended pending approval of his guardian as long as he is a child, or his own approval when he reaches legal age.
2.3
Conditions for the validity of a sale
Conditions for the validity of a sale may be divided into general and specic sets of conditions.51
50 Ibn c Abid n ((H ), vol.2, p.448), Al-Ah al Al-Shakhs iyya by the late Dr. Mus a . anaf . w .t . af . Al-Sib ac (vol.1, p.95). 51 See the details in Ibn c Abid c c n ((H ), vol.4, p.6), Aqd Al-Bay for Professor Al. anaf c Zarq a (p.25 thereon), Al-Amw al wa Naz usuf M us a . ariyyat Al- Aqd by Dr. Muh . ammad Y (p.394 onwards).
2.3. CONDITIONS FOR THE VALIDITY OF A SALE General conditions
33
Those are the conditions that must be satised for all types of sale contracts to make them legally valid. Those general conditions specify that the sale must not include any of the following six shortcomings: uncertainty or ignorance (al-jah ala), coercion, time-restriction, uncertain specication (gharar al-was . f), ). harm (al-d arar ), and corrupting conditions ( al-sh ur u t al-mufsida . . 1. Ignorance: This shortcoming signies excessive uncertainty or ignorance that may lead to disputes that are impossible to resolve, since both parties would have equally valid arguments based on ignorance. An example of such a shortcoming is when a person sells one sheep out of a herd. This kind of ignorance may be divided into four types: (a) Ignorance by the buyer of the object of the sale: its genus, type, or quantity. (b) Ignorance of the price. Thus, it is not valid to sell something at a price specied to be the price of a similar object, or whatever future price may be determined in the market. (c) Ignorance of the time-period terms, as in deferred price or conditional options (khiy ar al-shart ), where the time-periods must be known, oth . erwise the contract is deemed defective. If the price and object are both fungible, the price may be deferred to a known date. However, if either the price or the object of the sale are non-fungible and identied, the scholars have agreed that the price may not be deferred. Thus, if a person sells a specic item to deliver it after one month, or if a person buys an item using a unique object as its price with the understanding that he will deliver the price in one month, then the sale is not valid, even if the term till delivery is known. This follows from the fact that deferment was legalized to enable the parties to the contract to obtain the property required to compensate the other party. This applies to fungibles since they are not specic items identied in the sale. However, specied non-fungibles are by their nature dened and present, and thus deferment would lead to damages without a corresponding benet.52 (d) Ignorance of the means of documentation: This type of ignorance would ensue if the buyer makes it a condition to have a third party guarantor of the transaction, or pawning an object of the same value as the deferred price. In this case, the guarantor of the object to be pawned must be specied, otherwise the sale is not valid. 2. Coercion: We consider two types of coercion in sale:
52 Ibn Al-Hum am ((H ), vol.5, p.219), Al-Im am Al-Nawaw /Al-Subk ((Sh ac ), vol.9, . anaf p.373), Ibn Rushd Al-H af d ((M alik ), vol.2, p.155). .
34
CHAPTER 2. CONDITIONS OF SALE (a) Total coercion: this is the situation where the coerced person nds himself forced to take an action; e.g. if he is threatened by death or permanent physical disability. (b) Partial coercion: this would result if the person is threatened with incarceration, beating, or injustice such as prevention from promotion or immediate demotion. Both types of coercion aect the sale, rendering it invalid for most H s, and suspended for Zufar. In this case, the buyer owns the . anaf object of sale after delivery of the price if the sale is invalid. However, the buyer does not unconditionally own the object of sale when th eprice is delivered if the sale is considered suspended. The better opinion is considering the coerced sale suspended, since the H . anaf scholars have agreed that if the coerced person approves the sale after the coercion is removed, it becomes valid and executable. This is the ruling for the suspended and not the invalid sale.53 3. Timing: A sale is defective if it has an expiration period, as in saying: I sold you this dress for one month. In this case, the sale is invalid, since ownership of a specic object does not have an expiration date. 4. Deception and gharar: If a person sells a cow with the understanding that it produces a certain amount of milk per day. This description of the object of sale is only assumed to materialize, and the actual amount of milk the cow produces may be less. However, if the cow is sold with the understanding that it produces milk but without quantifying its production, the specication is deemed valid. Uncertainty regarding the existence of the object of sale (gharar al-wuj u d) of selling what invalidates the sale due to the Prophets (pbuh) prohibition may and may not exist (bayc al-gharar);54 e.g. selling the ospring of the ospring. 5. Harmful sales: This type of characteristic ensues if the object of sale cannot be delivered without causing the seller losses that exceed what he is selling. For example, if he sells a specic beam in the roof of a building, or a sleave of a dress, then the delivery of the object of sale would require destroying the house or the dress. Since the corrupting factor in this type of sale negatively aects only the personal rights of the seller (and not the legal rights), scholars have determined that if the seller completes the delivery that harms himself (e.g. by extracting the beam or cutting the sleave), the sale becomes valid.
53 Al-K as an ((H ), vol.7, p.188), Al-Madkhal Al-Fiqh by Professor Al-Zarq a (vol.1, . anaf n ((H )). p.364), and Ibn c Abid . anaf 54 Narrated by Muslim, Ahmad, and Ash c u . . . ab Al-Sunan Al-Arba a on the authority of Ab Hurayra (mAbph) (see Ibn Al-Ath r Al-Jazar (, vol.1, p.441), Al-Haytham (, vol.4, p.80).
2.3. CONDITIONS FOR THE VALIDITY OF A SALE
35
6. Corrupting condition: Any condition that causes benet to a party of the contract is corrupting unless it has been specied in the law, accepted in custom and convention, required by the contract, or suitable for the transaction. Examples of corrupting conditions are: if a person sells a car with the condition that he can use it a month after the sale, or a house on the condition that he can reside in it for some period; or if the buyer stipulates in the contract itself that the seller must lend him some amount of money. ud alIf a corrupting condition is made part of a commutative contract (c uq muc a wad a t , such as sale, lease, etc.), it invalidates the contract. In other . types of contracts (e.g. donations, marriage, etc.), such conditions are deemed nugatory, and these contracts themselves are considered valid.55 Professor Mus a Al-Zarq a has commented on this topic saying: Since .t . af conventions among people validate conditions in the opinion of some scholars, every condition that is originally defective becomes valid and binding if people make it a convention and use it often. Thus, we can say that the corrupting condition has been juristically eliminated in peoples dealings with the passage of time, and this ages conditions have all become valid by the very fundamentals of H inference (ijtih ad).56 . anaf Specic conditions Those are the conditions relating to some sales and not to others, as detailed below: 1. Receipt of movable (manq ul) goods:57 It is a condition for the validity of selling a movable good purchased from another that the seller receives it from the rst seller prior to concluding the second sale. This ruling follows from the high rate of depreciation of movable goods, and thus the second sale before receiving the goods would incorporate prohibited uncertainty (gharar). However, Ab uH fa and Ab u Y usuf allowed the . an ar) prior to receipt, as discussed below. sale of immovable properties (c aq 2. Knowing the initial price in trust sales (buy uc al-am ana): This type of sales includes cost-plus (mur abah . a), investiture (tawliya), resale with loss (wad c a), and joint purchase (ishr ak), as detailed below. . 3. Exchanging object and price prior to parting in money exchange transactions (. sarf). 4. Satisfaction of forward sale (salam) conditions as detailed below, if that is the nature of the sale. 5. Equality of compensations if the object of sale lends itself to usurious uses (ribawiyya), and avoiding the semblance of rib a.
55 Al-Amw al 56 c Aqd c wa Naz usuf M us a (p.423). . ariyyat Al- Aqd by Professor Muh . ammad Y Al-Bayc (p.28). 57 Here we use movable for manq ul and immovable property for c aq a r.
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CHAPTER 2. CONDITIONS OF SALE 6. Receipt of debts on the parties, such as the object or price of forward sale, or selling an object in exchange for a debt on someone other than the seller. All of those debts may not be sold by anyone other than the debtor before receiving them. For example: the buyer in a forward sale may not sell the object of sale before receiving it from the seller. Also, the creditor may not buy an item from a party other than the debtor, with the price being the unpaid debt.
2.4
Conditions for bindingness (luz um)
The conditions for a sale to be binding come into consideration after the conditions of conclusion and executability. Thus, for a sale to be binding, the contract must be devoid of all options that allow one of its parties to void the contract (e.g. options by condition (khiy ar Al-shart ), description (was . f), price payment . n), inspection (ruya), defect (c ayb), or deception (naqd), identication (tac y (ghubn mac a al-taghr r). If any of those options are present in the sale contract, is not binding on the party who has the option right. This party may void it the sale or accept it, unless the considerations discussed in the chapters dealing with options (al-khiy ar at) apply.58 Note that the opposite of conclusion of a contract is its voiding; the opposite of its validity is its invalidity (but an) or its defectiveness (fas ad); the opposite . l of its executability is its suspension; and the opposite of its bindingn is nonbinding, implying the existence of an option.
2.5
Summary of sale conditions
This section summarizes the dierent types of conditions of sale in dierent juristic schools (madha hib), and highlights the points of agreement and disagreement among the various schools. Jurists enumerated dierent types of conditions of sales: the H s enumerated twenty-three conditions, the M alik s enumer. anaf s enumerated twenty two conditions, and the ated eleven conditions, the Sh ac H s enumerated eleven conditions. . anbal
2.5.1
Conditions of sale for the H s . anaf
The H s classied the conditions of sale into four groups: (i) conditions of . anaf conclusion, (ii) conditions of validity, (iii) conditions of executability, and (iv) conditions of bindingness, with a total of twenty three conditions.59 (i) Conditions of conclusion Conditions of conclusion fall in four categories:
58 Ibn c Abid n 59 Al-K as an
((H ), vol.5, p.6), c Aqd Al-Bayc by Professor Al-Zarq a (p.32). . anaf ((H ), vol.5, pp.135148,155). . anaf
2.5. SUMMARY OF SALE CONDITIONS
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1. Conditions pertaining to the parties of the contract. The buyer and the seller must both satisfy two conditions: (a) Sanity and discernment: The sales and purchases of an insane person, and those of a young non-discerning child, are not concluded. (b) Multiplicity: A sale may not be concluded by one person, but the oer must come from one party, and the acceptance from another. The exceptions to this rule are the father and his plenipotentiary, the judge, and a messenger of both sides; in which cases one party may be both buyer and seller. 2. Conditions pertaining to the language of the contract, consisting of the oer and acceptance. There are three such conditions: (a) Audibility: The sale is not concluded unless both parties heard the utterances of the other. (b) Correspondence of the oer and acceptance: The buyer must accept all the merchandise specied, and at the price indicated, in the oer. If the oer and acceptance do not correspond to one another, the sale is not concluded, unless the non-correspondence benets the other party, e.g. if the buyer accepts to buy at a price higher than that indicated in the oer to sell. (c) Unity of the contract session: The oer and acceptance must be uttered in one session without break. If the session is altered, one of the parties departs, or one of the parties gets occupied by another matter before acceptance, then the sale is not concluded. The denition of a unied session is to be determined based on convention and the nature of the contract. However, immediate acceptance is not necessary, since the accepting party may need time to consider the oer. In case the contract is conducted by any kind of mail, the session in which the message of the rst party arrives to the second party is considered the session of the contract. 3. Conditions pertaining to the object of the contract: There are ve such conditions: (a) That the object of sale is a good: This limits the object of sale to things that can commonly be used to benet people, so the sale of a dead animal (mayta), or an insignicant amount of a good such as one grain of wheat, is not concluded. (b) That it is admissible: In other words only objects from which it is legal to derive benet may be sold. Thus, the sale of wine and pork may not be concluded since their use is prohibited. This and the above condition were combined before into one.
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CHAPTER 2. CONDITIONS OF SALE (c) That it is private property: Thus, the sale of what is not owned by any person, such as grass for public grazing is not permissible, even if it is on privately owned land. (d) That it exists at the time of the contract: Thus, the sale of non-existent objects such as the produce of the produce may not be concluded. Also, the sale of items that may exist and may vanish (e.g. a lamb in the womb or milk in an udder) may not be concluded. (e) That it be possible to deliver the object of sale at the time of the contract: Thus, the sale of sh in the water and birds in the sky may not be concluded. 4. The condition of compensation or price: The price must be an existing legitimate privately owned item. Thus, the price of a sale may not be wine or pork.
(ii) Conditions of validity Those are subdivided into general and specic conditions. The general conditions pertain to all types of sale and subsume all the conditions of conclusion mentioned above, since a contract that may not be concluded may not be valid either. In addition, there are four other conditions of validity: 1. That the object of sale and the price are known beyond dispute: Thus, it is not valid to sell an unknown such as one sheep in a herd, or to sell with an unknown or unidentied price such as selling an item for its value, or for what is described only as what is in ones hand or pocket without it being known to the seller. 2. That the sale is not timed: The essence of sale is the eternal exchange of property rights to the object of sale and the price. 3. That the sale is benecial: Thus the sale of one unit of currency for another equal in value is not valid. 4. That it does not contain a corrupting condition: Corrupting conditions are those that lead to an extra benet to one of the parties of the contract. They are forbidden since such benet is not legally proscribed, not accepted conventionally, and not appropriate to the nature contracts. Thus, it is not valid to stipulate a condition that the sold animal be pregnant, that the object sold be used by the seller for a period after the sale, or that the buyer lends the seller an amount of money. As for the particular conditions that apply to some sales and not others, there are ve: 1. Receipt of movable or immovable but perishable goods before sale: Thus, if a person buys an item, it is not valid for him to sell it
39
to another before receiving it, since that would violate the prohibition of selling what he has not yet received. However, for an immovable object that is not perishable, selling it before having it in the sellers possession is valid for Ab uH fa and Ab u Y usuf. . an 2. That the initial price be known in trust sales: Those types of sales include cost-plus, investiture, and resale with loss. 3. Equality of the exchanged items if they are of the same genus and were measured by weight or volume. This is a condition for all commodities that can give rise to rib a. 4. The satisfaction of the conditions of forward sale when conducting this type of sale. For example, the entire price of the sale must be paid during the sale session. 5. That neither of the exchanged items is a debt when the debt is being sold to a party other than the debtor. (iii) Conditions of executability There are two conditions of executability: 1. That the object of sale is owned or under the authority of the seller: Thus, the sale of an item not owned by the seller (either sale of what is owned by another, or sale of an uncommissioned agent) is not executable, except in the forward sale, since it is valid to sell what he will own after the contract is concluded. 2. That none other than the seller have a right in the object of sale: Thus, the sale of a pawned or rented item is not executable, since others have a right in the item that is owned by the seller. (iv) Conditions of bindingness There is only one condition for the contract to be binding on its parties, and that is not having any options. Thus, a sale contract that allows for options is not binding, and may be voided.
2.5.2
Conditions of sale for the M alik s
The M alik conditions are divided into three groups pertaining to the parties to the contract, the language of the contract, and the object of the contract, for a total of eleven conditions.60 The conditions pertaining to the buyer and seller are three, with a fourth for the seller alone:
60 Ibn Juzayy ((M alik ), p.245 onwards), Ibn Rushd Al-H d ((M alik ), vol.2, pp.125. af 127,168-171).
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CHAPTER 2. CONDITIONS OF SALE 1. That the buyer and seller are both discerning: Thus, the sale of a non-discerning child, an insane person, an unconscious person, and an intoxicated person, all may not be concluded. However, the sale of a discerning person is not necessarily binding regardless of validity; unless the discerning child is a legal agent of a legally responsible person, in which case it is binding. 2. That the buyer and seller are both owners, legal agents of owners, or guardians of owners: Thus, the sale of an uncommissioned agent is concluded, and suspended conditional on the approval of the owner. 3. That they are free to choose: Thus, the sale and purchase of a coerced person are void. The authoritative opinion among the M alik s is that the sale of coerced person is not binding. 4. That the seller is discerning and of legal age: Thus, the sale of an incompetent person, or a person under the supervision of a guardian, are not executable, and they are suspended conditional on the approval of the guardian.
It is not necessary for the parties to the contract to be Muslims, except for the buyer of a Muslim slave, or the buyer of a copy of the Qur an (i.e. a Mus .h . af). In those cases, the sale is valid and executable. However, the non-Muslim buyer is forced to give up his ownership of that item, since that is demeaning for Islam. Also, the sale and purchase by a blind person is allowed, thus eye-sight is not a condition for sale. As for the conditions pertaining to the language of the contract, they are: 1. Unity of the contract session: Thus, the oer and acceptance must take place in the same session; i.e. if a seller tells a [potential] buyer: I sold you this book for so much, and the buyer did not answer him before they parted from the session, the sale is not concluded. 2. The oer and acceptance must not be separated by anything that conventionally indicates rejection of the sale. If something occurs between the oer and acceptance that is conventionally associated with rejection, the contract is not concluded. As for the conditions pertaining to the price and object of sale, they are: 1. That they are not legally prohibited: Thus, the sale of a dead animal, blood, or an item that is not yet in the possession of the seller, are not concluded. 2. That they are pure: Thus, the sale of impure items such as wine or pork is invalid. Also, it is conventionally agreed that the sale of ivory,
41
garbage, and impure oil are generally prohibited. However, Ibn Wahb allowed such sales. Thus, the scholars who consider the ivory obtained from an elephant to be a tooth, consider it a part of the dead animal, and thus forbidden; while those who consider it an inverted horn nd it admissible. 3. That it can be used in a legally benecial manner: Thus, it is not allowed to sell dogs, insects, and gambling machines. However, the M alik s have dierent opinions over the sale of dogs for use in hunting and the protection of sheep. 4. That it be known to the parties of the contract: Thus, the sale of an unknown is not allowed. 5. That it be possible to deliver: Thus, the sale of what is not possible to deliver, such as sh in a sea, ocean, or river, is not concluded.
2.5.3
The Sh ac s have stipulated twenty two conditions pertaining to the parties of the contract, its language, or its object.61 There are four conditions pertaining to the buyer and seller: 1. Eligibility (al-rushd), which constitutes being discerning, of legal age, and actively protective of their religious and nancial well-being. Thus, the sale of a young boy is not concluded (even if intended to test his judgment), and neither is the sale of an insane person, or one under supervision due to his incompetence concluded. However, if a boy conducts a sale and destroys an item that he bought or borrowed from an eligible person, then the apparent ruling is that he is not responsible for the destroyed item, since the one who gave him control over that item is considered the one who wasted his owned property. However, the more sophisticated and less apparent ruling is that the underage child is responsible for compensating the other party to that contract after he reaches legal age, as stated by in Al-Umm, chapter of conrmation (Al-Iqr ar). In case the Al-Sh ac boy receives items sold to him by another boy, without the permission of their guardians, then each of them is responsible for what he received from the other. However, if the exchange took place with the permission of the guardians, then the guardians are the ones who are responsible for the items. The person who sells to a boy is responsible to return the price to his guardian. Thus, if he returns it to the child (even with the permission of the guardian), then he is still responsible for what may happen to the item. However, if he returns it to the guardian, then he has relieved himself of all responsibility. Exceptions to this rule exist in case the sold item was
61 Al-Khat b
Conditions of sale for the Sh ac s
Al-Shirb n ((Sh ac ), vol.2, pp.5-16), Al-Sharq aw ((Sh ac ), pp.141-145).
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CHAPTER 2. CONDITIONS OF SALE for the physical benet of the child, such as food and drink, in which case he is relieved of responsibility. 2. No wrongful coercion: Thus, the contract by one who is wrongfully coerced is not valid, according to the verse [4:29]. Whatever an unrightfully coerced person says has no legal eect, except in prayers, where it violates and voids it. Also, the actions of such a person have no legal eect except in breastfeeding, the voiding of ablutions, turning away from the qibla, not performing a religious obligation while able to do so, and murder. As for rightful coercion, approval of the law supersedes and replaces approval of the party to the contract. For example, if a person is indebted and refuses to pay his debts or sell some items to do so, then the judge may sell some of his property without his permission to repay his debts. Alternatively, the judge may rebuke or imprison him to force him to sell such an item and repay his debts. 3. That the person purchasing a Mus .h . af or other Islamic texts be a Muslim: This includes books of H th, of Islamic traditions and sayings, . ad or of Islamic Jurisprudence that contain elements of the Qur an, H th, . ad or tradition, since this is demeaning for Islam. The sales of such items to an indel is not valid. Similarly, the best opinion is that the purchase of a Muslim slave by an indel is not valid, since it humiliates a Muslim, and is in deance of the verse And never will All ah grant to the unbelievers a way (to triumph) over the believers [4:141]. 4. That the buyer does not belong to an army purchasing weapons that may be used against Muslims. However, items other than weapons, even if made of steal, may be sold to armies since they can be used for other purposes. A Christian or Jew in the land of war is considered equivalent to a member of an army. As for the thirteen conditions pertaining to the language, they are: 1. Direct communication: In other words one of the parties to the contract must address the other, as in saying I sold you such and such. Thus, if he says I sold to so-and-so, it is not valid. 2. Addressing the entire person: Thus, the seller may say: I sold to you, however, if he says I sold to your hand, or I sold to your head, it is not valid. 3. That the acceptor is the one who was addressed: Thus if an oer is made to one person, and a dierent person who is not his legal agent accepts on his behalf, the sale is not valid. If the person who was addressed died before accepting, and his heir accepted, the sale is not concluded. The same applies to his legal agent accepting after his death.
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4. That the rst speaker species the price and object of sale: for example, he may say: I sold you this for so-much, or I bought this from you for so-much. 5. That the buyer and seller mean what they say: Thus, if someone utters the language of oer or acceptance without meaning to exchange ownership with the addressed person (e.g. as a joke), the sale is not valid. 6. That the speaker making the oer does not withdraw it before acceptance, and that the eligibility of the two parties is maintained until acceptance. Hence, if he says: I sold you... then he becomes insane or faints before the other accepts, the contract is voided. If the oer is made with an implicit deferment or option to choose, then the deferment or the option were dropped, the contract is not valid, since the oer by itself is weaker in both cases. 7. That the period between oer and acceptance is not too long: A long period between the oer and acceptance is dened as one that indicates disinterest in the oer. 8. That no discussion outside the contract intervenes between the oer and acceptance, even if the buyer and seller do not part from the session, since such a foreign discussion is indicative of disinterest in the oer. Exceptions are a short period of silence, and a minimal foreign discussion during a khulc contract (divorce at the instance of the wife with monetary compensation), since it allows the husband to comment, and the wife to assert her opinion, unlike the case of a sales contract. 9. That the person making the oer does not alter it before the acceptance. For instance, if the seller says: I sold you for ve, then says: for ten before the other accepts, the contract is not concluded. 10. That the language of the contract be audible: Thus, both parties to the contract, and every person in their proximity, must hear what they are saying. If those present in the proximity of the parties do not hear the language, the contract is not concluded. 11. That the oer and acceptance agree completely, otherwise, the contract is not valid. 12. That language of the oer does not imply conditionality outside of the contract: For example, if the seller says: if so-and-so comes, I have sold you such-and-such, or I have sold you this house if so-and-so wishes, or if All ah wishes, since a sale requires assertiveness. However, if the oer is conditional on something related to the contract, such as saying: I have sold you this for so-much if you wish, then if the buyer says: I have bought, then the contract is valid, since this conditionality does not negate the contract, but is rather an explicit statement of something essential for the contract.
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13. That the contract does not have an expiration period: for instance, if the seller says: I sold you this house for a month for one thousand, the contract is not valid, since a sale must be unlimited in time. As for the ve conditions pertaining to the object of the contract, they are: 1. That the object of the contract is pure: Thus, the sale of dogs, wine, and an adulterated items that cannot be puried such as vinegar, milk, and animal fat, is not valid. 2. That it is legally benecial: Thus, the sale of insects that have no use is not valid. The same applies to the sale of animals and birds that have no legal uses such as lions, wolves, and vultures. Also, it is not valid to sell instruments of entertainment, or statues or pictures. Moreover, the sale of two grains of wheat (or any very small quantity) is not valid since it is insignicant. However, it is valid to sell water entrapped at the shore, rocks by a mountain, and dust in the desert by their owner, since they are benecial. 3. That the object be possible to deliver: Thus, it is not valid to sell birds in the sky, sh in a sea, ocean, or river, a run-away slave, or a lost or stolen animal. However, if the stolen animal is sold to one who is capable of extracting it from the thief, or a lost animal is sold to one who is capable of nding it, then it is valid, unless this buyer needs additional supplies to do so in which case it is not valid. 4. That the party to the contract be the objects owner, or a guardian for the owner: Thus, the sale of the uncommissioned agent is invalid, due to the saying of the Prophet (pbuh): There is no sale but for what you own.62 5. That the object be known to the parties to the contract, in genus, amount, and description: Thus, the sale of one of two dresses for instance is invalid due to corrupting uncertainty. However, the sale of one measure out of a heap of foodstus is valid since its parts are homogeneous, and ignorance of the exact items being sold is immaterial in this case. On the other hand, the sale of one item from a heterogeneous group (e.g. a herd of sheep) is not valid.
2.5.4
Conditions of sale for the H s . anbal
The H s have stipulated eleven conditions for the sale contract pertaining . anbal to the parties of the contract, its language, or its object.63 The two conditions pertaining to the parties to the contract are:
by Ab u D aw ud and Al-Tirmidh who said that it is a H th h asan. . ad . ibn Y usuf (1st printing (H ), vol.2, pp.5-14), Al-Buh ut (3rd printing . anbal (H ), vol.3, pp.139-166). . anbal
63 Marc 62 Narrated
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1. A sucient degree of discernment: Thus, sale by a young boy, an insane person, an intoxicated person, or an incompetent person is invalid; with the exception of cases where the guardian of a discerning child or incompetent person permits a benecial sale, in which case the contract is valid. However, if the sale is not benecial, it is forbidden for the guardian to give a permission to conclude the sale, since it would be wasteful. It is invalid for a discerning child or an incompetent person to give a gift, write a will, sell property, etc. unless their guardian approves the contract. In minor matters, the dealings of a young child (even if below the age of discernment) would be valid, as narrated that Ab u Al-Dard a bought a sparrow from a small child and set it free.64 Similarly, minor dealings of an incompetent person, such as a small container of foodstus or matches, etc. are permitted, since the justication of limiting their dealings is fear of wasting property, which is not applicable to minor dealings. It is valid to commission a discerning child as a legal agent in sending a gift or entering a house, in accordance with convention. 2. Mutual agreement of the buyer and seller of their own free will, or under rightful coercion. This is due to the verse [4:29], and the H th Trade is based on mutual agreement.65 Thus, the sale to pre. ad empt danger (bayc al-taljia, or bayc al-am ana), where the parties to the contract pretend to conduct a sale that they do not intend, is not valid. Also, the sale of someone who is joking about the sale is not valid, since his true intention is not to conduct a sale. The sale is valid in the case of rightful coercion, such as the case of a ruler coercing a person to sell some property in order to repay his debts, or to buy what would satisfy his debts. Examples of a rightfully coerced person include someone who has pawned some property, a monopolist, and a debtor. It is detestable to buy the property of a compelled person who sells his property for less than its market value. There are three conditions pertaining to the language of the contract: 1. Unity of the trading session: Thus, acceptance must be in the same session as the oer. So, if a seller says I sold you, and they parted before an acceptance in that session, the sale is not completed. 2. That there is no separator between the oer and acceptance that conventionally indicates aversion to acceptance. 3. That the contract does not have an expiration date or a suspension clause other than All ahs will: An example where this condition is violated would be saying: I sold you for a year, or I sold [or bought] if so and so agrees.
64 Narrated 65 Narrated
by Ibn ab M us a. by Ibn H an, with full reference provided above. . ibb
46
As for the six conditions pertaining to the price and object of the contract, they are: 1. That the object of sale is an owned commodity, i.e. something that is legitimate for use in all cases, not necessarily under necessity. A sale is an exchange of one property for another, thus the sale of what may not be used (such as insects) is not valid, and neither is the sale of items whose use and benets is prohibited such as wine, the sale of what may be used only as needed such as a dog, and what may only be used in cases of extreme necessity such as the meat of dead animals [at times of famine] or wine when choking with food in the throat. It is valid to sell the skin of a dead animal after staining it, and possessing it is valid even if not a necessity. Also, it is valid to sell a mule, a donkey, silk worms, or bees individually if it is possible, or with the entire beehive if seen entering it, since it is benecial for people. It is also valid to sell birds used for hunting, worms for catching sh, animals and birds of prey used for hunting only, and it is permitted to sell leeches to sucking blood (for medical purposes). It is also valid to sell birds to hear their voices (e.g. robins and nightingales) since that is a permissible benet. Also, it is permitted to sell parrots and similar birds. It is also permissible to give an ownerless dog as a gift. It is not valid to sell deadly poisons (e.g. from snakes), since they have no benecial use. The same applies to poisons extracted from various plants, unless they can be used in small quantities for medicinal benet. It is forbidden to sell a written Qur an (i.e. a Mus .h . af) to a Muslim or indel, since honoring it is obligatory, and selling it is a denigration of its value. Moreover, since an indel may not own a Mus .h . af in the long term, such a possession is invalid from its very beginning. It is not valid to sell instruments of entertainment such as horns, drums, dice, and chess-sets. It is not valid to sell insects such as beetles, mice, snakes, scorpions, cockroaches, etc. It is not valid to sell a dead animal even for one who needs the money, nor is it valid to sell blood, pork, or idols. It is not valid to sell impure manure, or fats from impure sources (e.g. from a dead animal, etc.), due to the H th reported in Al-Bukh ar and . ad Muslim: When All ah forbids an item, He forbids its price. It is forbidden to use such impure fats in any way (e.g. lighting, etc.) since it was forbidden by the Prophet (pbuh) in an agreed-upon H th narrated by . ad J abir. It is not permitted to sell polluted fats (e.g. oils that were contaminated with impure substances) even to a non-believer, due to the above mentioned H th that forbids its price. However, it is valid to use impure . ad fats for lighting in places other than mosques, since that leads to benet without any harm.
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It is not permitted to sell a free human being, due to the H th reported . ad by Al-Bukh ar and Muslim: I am the adversary of three on the day of judgment; and among them is: any man who sold a free person and consumed the price. It is not permitted to sell public properties such as pasture, water or minerals prior to being possessed and owned by anyone, due to its violation of the following condition: 2. That the object of sale is completely owned by its seller since the Prophet (pbuh) said to H m ibn H am: Do not sell what you do not . ak . iz possess.66 Thus, the trading of an uncommissioned agent is not valid, even if permission is obtained afterwards. It is not valid to sell what is not owned such as a free person or a public property before obtaining possession, or the sale of lands held in trust and not distributed. However, a religious leader may sell such trust land for benet. Those who considered such a sale valid also allowed individuals other than religious leaders to perform such sales. It is not valid to sell or lease the Holy Mosque in Makkah or the homes surrounding it. The same applies to the areas where h . ajj rituals are performed, since those, like mosques, are for the benet of all Muslims. It is not valid to sell what is no completely owned such as an item the ownership of which is still suspended by an option. 3. That the item is deliverable at the time of the contract, since that which is not deliverable is comparable to that which does not exist, and the sale of the latter is not valid. Thus, it is not valid to sell half of a specic object such as a pot, a sword, or an animal. Also, it is not valid to sell a debt to anyone other than the debtor. It is not valid to sell a run-away slave or lost animal to someone capable of bringing them back, due to the H th: The Prophet (pbuh) . ad has forbidden the purchase of a run-away slave.67 It is not valid to sell sh in water, unless it is encased in an area that facilitates catching it. It is not valid to sell birds that are dicult to catch, or if it is ying and accustomed to return, unless it is in a closed area, since otherwise it is not known to be deliverable. The sale of an object obtained by coercion is only valid to the one who obtained it thus, or to a person who can obtain it from him. In the latter case, the person has the option to void the contract if he fails to obtain the object. 4. That the object of sale be known to the buyer and seller via inspection at the time of the contract or at an earlier time such that the object certainly would not change. It is valid for a blind person to buy and sell what he may inspect without eyesight (i.e. by using his other senses such as touch, smell and taste).
66 Narrated 67 Narrated
by Ibn M ajah and Al-Tirmidh , who considered it a H th s ah h. . ad . . . by Ah u Sac d. . mad on the authority of Ab
48
CHAPTER 2. CONDITIONS OF SALE It is valid to sell an unidentied measure out of a large quantity of a homogeneous good. It is not valid to sell based on a sample (such as showing the buyer one measure of a good, and selling a much larger uninspected quantity claiming to be of the same material), since the object of sale is not inspected at the time of the sale. It is not valid to sell an unborn animal in the womb, milk in an udder, seeds in fruits, or wool on an animal, except as part of a sale of the whole, such as: I sold you this animal and what it carries, or I sold you this land and the seeds in it. It is not valid to sell the ospring of the ospring of an animal, what a tree or animal carries, perfume in its container, onions or turnips before extracting them, a folded cloth, or a cloth the weaving of which has not been completed. All of those items, as described, are not inspected prior to the sale. It is not valid to sell based on touch as: I have sold you this dress when you touch it, if you touch it, or I have sold you whichever dress you touch, for such-and-such a price. Similarly, the sale of discarded items is not valid. For example, if a seller says: whenever (or if) I discard this item, then its yours for so-much, or whichever dress I discard is t), where the sold to you for so much. Sale of the pebble (bayc al-h . as .a person throws a pebble, and whichever item it falls on is sold to them at a pre-specied price, is not valid. ul) without identifying the Also, the sale of an unknown (bayc al-majh specic item out of a group (e.g. selling one sheep out of a herd, or one tree out of a garden) even if all the members of the group are of equal value. 5. That the price be known to both parties at the time of the contract or before: Thus, it is not valid to sell at an unknown numerical price, or at the same price for which so-and-so sold, unless the latter is known to both parties. It is not valid to sell at the same price at which people trade, or at the price on which we agree later (in disagreement with the view of later H s). . anbal 6. That the price, object of sale, and parties to the contract do not have any invalidating aspects such as usury (rib a), invalidating conditions, etc. Thus, it is not valid to sell an animal designated for an obligatory religious sacrice (at h . ajj or elsewhere) except for better animals. Also, it is not valid to sell mortmain property without compelling reason, sell a pawned item without permission of the pawn-broker, sell water or appropriate clothing to a person embarking on prayer and lacking those items, sell a Mus .h . af, or selling after the call for the Friday noon (jumc a) prayer has been made.
49
2.5.5
Agreements and dierences in sale conditions
In the discussions above, we notice the following: 1. For the parties to the contract: Discernment is an agreed-upon condition. However, there are disagreements regarding the condition of reaching legal age: it is a condition of executability for the M alik s and H s, . anaf s and H anbal s. and a condition of conclusion for the Sh ac . As for acting of their own free will, it is a condition of conclusion for the majority of scholars, and a condition of executability for the H s. . anaf Thus, coerced sale is void for the majority of scholars, while it is suspended and not executable for the H s, and non-binding for the mainstream . anaf M alik position. 2. For the language of the contract: The following are all agreed-upon conditions for all the madha hib, even if some of the fuqah a omit mention ing some of them: unity of the session without a separation between the oer and acceptance, the full correspondence of acceptance to oer, that the language be audible and that the contract is not suspended, and that the sale does not have an expiration period. 3. For the object of the contract: The following are agreed upon by the scholars: that the object of sale be an owned property that can be used legitimately, that it is pure, existent, possible to deliver, and fully known (i.e. without ignorance). Ignorance voids the contract for the majority of the scholars, but only renders it defective for the H s. The condition . anaf that the object be owned by the seller is a condition of executability for s the H s and M alik s, and a condition of conclusion for the Sh ac . anaf and H s. Thus, the sale and purchase of an uncommissioned agent . anbal is suspended for the H s and M alik s, and void for the Sh ac s and . anaf H anbal s. . As for the condition that no person other than the seller have any right to the object of sale (as in the sale of a pawned or rented item), it is a condition of executability for the H s and M alik s, and a condition of . anaf s and H anbal s. Thus, the sale of a pawned or conclusion for the Sh ac . rented item is suspended for the rst two schools, and void for the second two.

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Chapter 2

2.1. CONDITIONS OF CONCLUSION

Eligibility of the parties

2.1. CONDITIONS OF CONCLUSION

CHAPTER 2. CONDITIONS OF SALE

2.1. CONDITIONS OF CONCLUSION

Correspondence of acceptance to the oer

Unity of the contract session

CHAPTER 2. CONDITIONS OF SALE

2.1. CONDITIONS OF CONCLUSION

CHAPTER 2. CONDITIONS OF SALE

2.1. CONDITIONS OF CONCLUSION

2.1. CONDITIONS OF CONCLUSION

CHAPTER 2. CONDITIONS OF SALE

Conditions for the executability of a sale

2.2. CONDITIONS FOR THE EXECUTABILITY OF A SALE

CHAPTER 2. CONDITIONS OF SALE

2.2. CONDITIONS FOR THE EXECUTABILITY OF A SALE

2.2. CONDITIONS FOR THE EXECUTABILITY OF A SALE

CHAPTER 2. CONDITIONS OF SALE

Conditions for the validity of a sale

2.3. CONDITIONS FOR THE VALIDITY OF A SALE General conditions

2.3. CONDITIONS FOR THE VALIDITY OF A SALE

Conditions for bindingness (luz um)

Summary of sale conditions

Conditions of sale for the H s . anaf

2.5. SUMMARY OF SALE CONDITIONS

2.5. SUMMARY OF SALE CONDITIONS

Conditions of sale for the M alik s

2.5. SUMMARY OF SALE CONDITIONS

Conditions of sale for the Sh ac s

Al-Shirb n ((Sh ac ), vol.2, pp.5-16), Al-Sharq aw ((Sh ac ), pp.141-145).

2.5. SUMMARY OF SALE CONDITIONS

CHAPTER 2. CONDITIONS OF SALE

Conditions of sale for the H s . anbal

2.5. SUMMARY OF SALE CONDITIONS

by Ibn ab M us a. by Ibn H an, with full reference provided above. . ibb

CHAPTER 2. CONDITIONS OF SALE

2.5. SUMMARY OF SALE CONDITIONS

2.5. SUMMARY OF SALE CONDITIONS

Agreements and dierences in sale conditions

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